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The idea behind this blog is to collect information on the death penalty in India and make it accessible. We are trying our best to put the latest information on the people who are currently on death row, the status of their cases, their mercy petitions and also the information on any death sentence across the country. Please feel free to write us and give us your suggestions and comments and also any information you have come across regarding the death penalty in India. Our email id is abolishdeathpenaltyindia@gmail.com The blog is currently managed by Grace Pelly, Lara Jesani, Nitu Sanadhya, Rebecca Gonsalvez, Reena Mary George and Vijay Hiremath.
Kindly mark copies of the emails to:
vijayhiremath@gmail.com
reena.mary.george@univie.ac.at

Friday, February 6, 2015

The shadow of the gallows

The sinister shadow of the
gallows, with bodies swinging at the noose, has been appearing everywhere in
Pakistan; a number of condemned prisoners have been hanged within days after
the six-year moratorium on the death sentence was lifted in the wake of the
horrendous attack in Peshawar which killed 132 children and nine adults.

The reaction seems to be a
straight desire for eye for eye revenge. No one appears to have bothered to
think through what the impact will be, how these hangings go to further brutalise
a society already numbed to pain and death, and the degree to which the action
by the state not only gives out a very definite signal that killing people is
acceptable but also threatens to trigger retaliation by the militants. The fear
of this has already compelled schools in the Punjab to shut down while the fog
which engulfs Lahore carries with it a strong element of invisible, but almost
discernible, fear.

What is happening makes things
even grimmer in our state, with no signs that anything that could really stop
the militant menace is taking place. Bodies swinging in prison yards at dawn
will change nothing. There is of course plenty of evidence from around the
world that capital punishment does not bring down the rate of crime. In fact, it
sometimes has the opposite impact. Studies proving this come from the 32 US
states which retain the death penalty and the 18 which have abolished it. There
are now less than 58 countries in the world which retain the death penalty for
crimes other than treason. Around 140 have banned it altogether.

The pressure on Pakistan to join
the list of more civilised nations, which recognise that killing citizens has
little impact on stopping crime, has been immense. It is also true that within
our flawed justice system it is the poor that hang, and the rich and powerful
who get away. This is as true in the case of terrorists as anyone else.

One instance of this has come in
the controversy over the planned hanging of Shafqat Hussain, who was only 14
when he allegedly committed the crime of murder and kidnapping for which he was
sentenced to death. An international outcry has been created over the
appearance of his name on the list of prisoners to be hung first of all.

So, let us accept that hanging is
no real solution to the problem we face. What then is the solution? We need to
come up with answers and we need to discover these answers as fast as possible.
It has been too long already. One weight that rests on many minds is the issue
of whether we are truly able to eradicate militancy at all. There are many of
us who wonder that because its roots have been allowed to grow so deep into our
soil and poison layer after layer of it as they push their way through. Revenge
will not work; so what will?

We need to undo the hatred that
was injected into our society in the largest doses during the 1980s, with the
syringe readied even before this. How will this happen? There are no simple
answers. But we have to begin with the hope that within the coming two decades
we will be able to see something resembling change; something we can call hope.
It is perhaps unrealistic to expect any fundamental alteration to come before
this – but it should be possible to see some semblance of movement taking us
towards the target of a society within which people feel safer and all opinions
are respected.

Where to begin is not a very
difficult question to answer provided we can muster up the desired will and the
desired resolve. Clerics who spread hatred such as the Imam of the Lal Masjid
in Islamabad need to be arrested. With his stone cold eyes, Maulana Abdul Aziz,
refusing to even condemn the mass murder of children in their schools
represents all that is wrong with our society. There are others like him. They
run groups that function under new names to bypass the ban placed on them
mainly in the 2000s. Astonishingly, these outfits are allowed to function and
their leaders permitted to preach hatred.

An effective law against hate
speech is still to be put in place and implemented. Those that exist are
virtually not used at all and even many policemen are entirely unfamiliar with
them. The result is the existence of groups who through their names and actions
advocate the killing of Ahmadis and other communities whose beliefs they find
fault with. This situation, through legal reform carried out by parliament and
through action taken by the government through its security agencies, has to be
changed first of all.

We must also find a way to rein
in a media that has become a monster out of control. Yes, of course, freedom of
speech is a basic right and must be protected. But it should not extend to
giving air time to people who spread intolerance, hatred and messages of
violence by using television channels and their anchors to do so. We have seen
this happen even after Peshawar – the attack that seems to have woken up a
nation but which may still go without bringing about the kind of long-term
reform we so badly need.

School curricula are of course
another place where mindset can be adjusted. We must use these books wisely.
Their purpose has to be to spread knowledge, encompassing a wide set of views,
with pupils taught to think and determine for themselves what path they most
closely believe in. Blockades have been placed consistently in this process
over the years, and have come most recently in KP where steps taken to broaden
minds have been taken back and the fences of the past erected once more around
the ability of children to think more freely and to look out at a world broader
than the one most of them live in.

Ending militancy is also closely
tied in with other realities of our society. These include ignorance, poverty
and illiteracy. They allow militant groups to recruit young people who have
nothing else to set their sights on and of course it is these young men who are
converted into suicide bombers willing to give their own lives in order to take
that of others.

Development is the key to
stopping this malignant process from spreading further. Rather than digging up
road after road and paralysing cities such as Islamabad and Lahore with an
ill-conceived metro project which has also caused vast environmental
destruction, the money we have available must go into hospitals, into schools
and into village infrastructure. Yes, placing MRI machines in hospitals,
furniture in schools or drains in a village through which no pipe water flows
is not as glamorous as announcing mega projects. But it is what we need most of
all.

At the same time we need to close
down the madressahs which have cropped up because we have abandoned our public
school system and allowed it to literally rot away. Right now, all these issues
are being spoken of. It is time to do something about enforcing the steps
discussed, since it is all too easy to predict our bloodlust and hanging people
will solve nothing at all.

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The Death Penalty Scenario in India

The Indian government is committed to the retention of the death penalty. In December 2007 India was among the minority of countries who voted at the United Nations General Assembly against a moratorium on executions.

India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. It is mandatory for second convictions for drug trafficking offences.

Death sentences are carried out by hanging. In 1983 the Supreme Court upheld the constitutionality of this method, stating that it: “involves no barbarity, torture or degradation.”

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement.

Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

There is very little information on the number of people sentenced to death in India. According to the National Crime Records Bureau, 1,455 convicts were awarded the death penalty during the period 2001-2011. The actual figure of sentences originally awarded is much higher considering the death sentences of 4,321 convicts came to be commuted to life imprisonment in the said period.

That the imposition of death penalty is ineffective in controlling crime rate or deterring crimes, is widely known and even accepted on the basis of exhaustive research and statistics. Inherently there are serious flaws in capital sentencing. DNA evidence is not used, death sentences can be given by a majority rather than a unanimous bench and many convictions for death sentences are based entirely on circumstantial evidence. This coupled with a faulty criminal law enforcement system and admittedly high corruption levels in the police force investigating the crime, increases the chances of false convictions. In such a scenario, the correctness of conviction resulting in the ultimate sentence of capital punishment relies on a system of trial and error.

Also, the handing over of the death penalty is dependent on various variable factors such as existing biases amongst law enforcers, social biases, media reports and public outcry, social and financial status of the accused, quality of legal representation and last but not the least, the bent of mind of the judges.

During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Paradoxically, whilst the “rarest of the rare” doctrine has been used to limit and restrict the use of the mandatory death penalty elsewhere in the world, it has often had the opposite effect in India. It has enabled judges to justify imposing sentences of death in an arbitrary manner, reinforcing the deeply flawed character of capital punishment in India today.

Recently in April 2013, in a petition filed by Devender Pal Singh Bhullar in the Supreme Court, delay in deciding his clemency plea was ruled out as a ground to commute his death sentence to life imprisonment. Devender Pal Singh Bhullar had approached the Supreme Court in 2011 after the President rejected his mercy petition after 8 years. The said judgment may have a far reaching effect on similar cases where mercy petitions have remained pending with the President for inordinate periods of time.